UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ESTATE OF MELVIN R. WILSON,

Plaintiff-Appellant,

v. No. 95-1003

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CA-94-101)

Argued: March 7, 1996

Decided: April 15, 1996

Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hunter Craycroft Harrison, Jr., McLean, Virginia, for

Appellnt. Dennis Edward Szybala, Assistant United States Attorney,

Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,

United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Melvin R. Wilson's wife brought this medical malpractice action

on behalf of his estate (the Estate) under the Federal Tort Claims Act

(FTCA), as amended, 28 U.S.C.A. §§ 1346(b), 2671-2680 (West

1993), alleging that physicians at the Hunter Holmes McGuire Medical Center (the McGuire Center), a hospital operated by the United

States Department of Veterans Affairs, caused Wilson's death by negligently failing to diagnose his lung cancer. The district court entered

judgment in favor of the Government following a trial without a jury,

and the Estate appeals. We affirm.

I.

Wilson underwent surgery for duodenal ulcers at the McGuire Center in August 1989. In preparation for the procedure, two chest x-rays

were taken, neither of which showed any evidence of lung cancer.

And, two post-operative visits to the McGuire Center during 1989

revealed that Wilson was recuperating from the surgery without complication. Subsequently, in June and July 1990, Wilson returned to the

McGuire Center complaining of stomach pain and vomiting. An

examination revealed no active ulcer disease. He was given gastric

medication and released. Wilson failed to keep a follow-up appointment in October 1990.

He next visited the McGuire Center in October 1991, suffering

pain in his left hip, leg, and foot. Wilson was treated and instructed

to return in two weeks, at which time he was admitted. Physicians

determined that Wilson's symptoms were caused by a narrowing of

the iliac artery and that surgery was unnecessary. Consequently, he

was released with medication for his circulatory problem. Shortly

thereafter, Wilson was diagnosed with lung cancer following his

emergency admission to another hospital with complaints of slurred

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speech and numbness on his right side. He was transferred to the

McGuire Center, where physicians determined that his condition was

terminal. Wilson died approximately three weeks later.

The Estate instituted this FTCA suit, claiming that the physicians

at the McGuire Center negligently failed to diagnose the lung cancer,

thereby depriving Wilson of a substantial possibility of a cure. Wilson's wife testified at trial that during his visits to the McGuire Center, Wilson made numerous complaints that the physicians failed to

investigate or, in some instances, to enter in his medical records. The

Estate also presented expert testimony that physicians at the McGuire

Center breached their duty of care* by failing to investigate adequately Wilson's complaints and that physicians at hospitals maintained by the Department of Veterans Affairs were interested only in

diseases related to military service. In response, the Government presented the testimony of two doctors who, based on the medical

records, opined that the physicians at the McGuire Center complied

with the standard of care and that Wilson's lung cancer either was not

present or was not detectible until long after his July 1990 visit. They

also testified that the circulatory problems Wilson suffered in 1991

were unrelated to his cancer.

At the close of the evidence, the district court entered judgment for

the Government, concluding that the Estate had not proven that the

physicians at the McGuire Center breached the standard of care. The

court also determined that the Estate had failed to establish proximate

causation because it found that Wilson's lung cancer developed after

he was examined at the McGuire Center in July 1990.

II.

The Estate maintains that the district court erred in permitting the

Government's two expert witnesses to testify. It claims that under the

law of Virginia these doctors were not competent to render an opinion

on the standard of care. See 28 U.S.C.A.§ 1346(b); Va. Code Ann.

§ 8.01-581.20(A) (Michie 1992). The Government, however, asserts

that the provisions of Virginia law concerning expert qualification are

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*The parties agreed before trial that the relevant standard of care was

that of a primary care provider.

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inapplicable in this FTCA action and that, instead, Federal Rule of

Evidence 702 controls the admission of expert testimony. We need

not resolve which standard governs the admission of this testimony

because our review of the record convinces us that under either analysis, the district court did not abuse its discretion in allowing the testimony. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th

Cir. 1986) (decision whether to admit expert testimony is reviewed

for abuse of discretion under Rule 702); Henning v. Thomas, 366

S.E.2d 109, 112 (Va. 1988) (appellate court reviews admission of

expert testimony under Va. Code Ann. § 8.01-581.20(A) for an abuse

of discretion).

III.

The Estate also argues that it proved proximate causation because

it showed that Wilson was deprived of a "substantial possibility of

survival." Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966).

We disagree. The district court properly concluded that the Estate was

required to establish that an investigation of Wilson's complaints

more likely than not would have revealed lung cancer and that if the

cancer had been detected, Wilson probably would have survived. See

Hurley v. United States, 923 F.2d 1091, 1093-95 (4th Cir. 1991)

(interpreting the phrase "substantial possibility" from Hicks as "tantamount to a probability")(internal quotations marks omitted); see also

Griffett v. Ryan, 443 S.E.2d 149, 152 (Va. 1994) (concluding that

plaintiff demonstrated proximate causation when trial testimony

established that a high likelihood existed that an operation at the time

the physician breached his duty of care would have resulted in the

patient being saved).

IV.

We have reviewed the remainder of the Estate's arguments and

conclude that they are without merit. Consequently, we affirm the

judgment of the district court.

AFFIRMED

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